COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60309 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RONALD GALIPO : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 23, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-248,087 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GEORGE F. LONJAK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: CHARLES MORGAN, JR. Attorney at Law 11510 Buckeye Road Cleveland, Ohio 44104 - 2 - FRANCIS E. SWEENEY, J.: Defendant-appellant, Ronald Galipo, timely appeals his con- victions of two counts of rape of a person under thirteen years of age (R.C. 2907.02) and one count of gross sexual imposition of a person under thirteen years of age (R.C. 2907.05). For the reasons set forth below, we affirm appellant's convictions. The pertinent testimony adduced at the jury trial is as fol- lows: Marie Galipo, the victim, testified that she is eleven years old and was born on November 30, 1978. Her mother is Donna Galipo and her father is Anthony Galipo. Marie testified that during the summer of 1989, her older half-brother, the appellant, came over to visit her house when her mother and younger brother, Gino, were home. They played school, whereby the appellant and Marie were the parents and Gino was a kid going to school. Appellant went to Gino's bedroom with Marie and closed the door. Gino was sent to Marie's bedroom. Appellant pulled his pants down and made Marie lick his penis until "white stuff" came out. Marie didn't want to do it, but he made her. Later, the three played hide and go seek. Marie and the appellant hid in her mother's bathroom. The appellant locked the door and laid on the toilet and made Marie lick his penis again. - 3 - She stopped when her brother, Gino, started knocking on the door. Marie testified that her mother was cooking during the time they played school and hide and seek. Marie was scared to tell anyone about this because of the appellant. The first person she told about this was Gail Morrison, her best friend's mother. Marie testified that while they were playing school, the appellant also touched her between the legs and stuck his finger inside of her. This incident made her bleed. Dr. Susan Maier, a pediatrician at Metro General Hospital, testified that she examined Marie on February 12, 1990. A pelvic exam of Marie revealed an irregularity in the area above her pos- terior fourchette, indicating a disruption to that area. This finding suggests to Dr. Maier that there has been previous trauma to that area. This trauma could have been from the placing of a finger in the vagina in a forceful manner. Gino Galipo, Marie's eight-year-old brother, testified that the appellant came to his apartment and played hide and go seek with Marie and himself. Marie and the appellant hid, and Gino had to find them. Gino heard them in the bathroom and opened the door to the bathroom. The appellant slammed it, and someone shut and covered the keyhole. Donna Galipo, Marie and Gino's mother, testified that her husband, Anthony Galipo, has sons and daughters from a previous marriage, including the appellant. Appellant visited the - 4 - apartment during June, 1989 to have dinner and to go with Donna to visit Anthony, who was in the hospital recovering from a stroke. Donna prepared dinner while the appellant and the children played games, including hide and seek. After dinner, the apppellant took off and never came back for a visit. In August or September, 1989, Gail Morrison called Donna and told her that one of the brothers in the family had done things to Marie. Donna talked to the police after the appellant called up and wanted to take the children for the weekend. When she told the appellant no, he became very upset and insisted that he wanted to take Marie. Donna then confronted Marie, who started crying and said she was afraid Donna would be mad. The appellant's sister, Donna Mitchell, testified for the defense that Donna Galipo gets drunk and hits Anthony Galipo. She has observed Marie scratch herself by her vagina a few times. The appellant testified that he is thirty-seven years old and divorced with two children. He admitted going to the Galipos' apartment for dinner with Donna Galipo and the kids. After the children went to bed, Donna Galipo made advances to appellant and they had sexual relations in the living room. The appellant denied having sexual relations with Marie. Based upon the above evidence, the jury found appellant guilty of two counts of rape (R.C. 2907.02) and one count of - 5 - gross sexual imposition (R.C. 2907.05). Appellant now timely appeals, raising one assignment of error for our review. WHEN A VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IT MUST BE REVERSED. Appellant argues that the verdict was against the manifest weight of the evidence. In addressing such a claim, this court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and deter-mines whether, in resolving conflicts in the evidence, the fact-finder clearly lost its way and creted such a miscarriage of jus-tice that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App. 3d 172, 175. It is primarily the function of the jury to determine the weight to be given the evidence and the credibility of the wit- nesses. Where the record reveals that a conviction was based upon sufficient evidence, an appellate court may not reverse a jury verdict. State v. DeHass (1967), 19 Ohio St. 2d 230. The rape statute (R.C. 2907.02[A][1][b]) provides in pertinent part that no person shall engage in sexual conduct with another when the other person is less than thirteen years of age. The gross sexual imposition statute (R.C. 2907.05[A][3]) pro-vides in pertinent part that no person shall have sexual contact with another, not his spouse, when the person is less than thirteen years of age. - 6 - Based upon the testimony of the victim that the appellant made her lick his penis on two occasions and forced his finger inside her on one occasion, along with the testimony of corroborating state's witnesses, we find that appellant's convictions are not against the manifest weight of the evidence. The jury was free to find the victim's testimony more reliable than the appellant's testimony. Assignment of Error I is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J. NAHRA, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .